Minister for Immigration and Border Protection v ASE15

1. The appeal be allowed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal by the Minister for Immigration and Border Protection from a decision of a judge of the Federal Circuit Court of Australia that relevantly resulted in the following orders: (2) A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 2 April 2015 and that decision is quashed. (3) A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to review application of the first, second and fourth applicants of the decision of the delegate made on 14 January 2015 before it according to law. (4) The first respondent pay the applicants' costs fixed in the sum of $6825. 2 The appeal initially concerned the first, second and third respondents (being the first, second and fourth applicants referred to in order (3)), but at the hearing of the appeal, at the instance of the Minister, the appeal was dismissed so far as it concerned the third respondent, with costs on that part of the appeal reserved. As a result, the appeal ultimately only concerned the first and second respondents. 3 The orders appealed from came about in the following circumstances. 4 On 27 August 2013, the first respondent lodged an application for a protection visa with the Department of Immigration and Border Protection, naming his wife, the second respondent, as a person included in the application. 5 In the application, the first respondent stated his residential address in Australia at an address in Quarry Street, Geraldton, Western Australia 6530, and gave the same address for his postal address. 6 On 14 January 2015, a delegate of the Minister made a decision refusing to grant the first and second respondents protection visas. 7 On 14 January 2015, the Department purported to give notification to the first respondent of the refusal of the application in accordance with the obligation imposed on the Minister in that regard by s 66(1) of the Migration Act 1958 (Cth). 8 Relying on s 66 and the Migration Regulations 1994 (Cth) reg 2.16(3) and reg 4.31(2), and s 494B(4) of the Act, the Department dispatched the delegate's decision under cover of a letter dated 14 January 2015, addressed to the first respondent at his last address for service provided to the Department by him for the purpose of receiving documents, being the Quarry Street address, and provided information concerning review rights. In particular, the letter advised that the first and second respondents were entitled to apply to the (former) Refugee Review Tribunal (RRT) for a review of the delegate's decision and that an application for review must be given to the RRT within the prescribed timeframe, which timeframe commenced on the day on which the first and second respondents were taken to have been notified of the decision, and ended at the end of 28 days. They were further advised that the review period was prescribed by law and an application for merits review may not be accepted after that date. The letter finally advised that, as the letter was mailed to an Australian address from within Australia, the first and second respondents were taken to have received it seven working days after the date of the letter, although a working day did not include weekends or public holidays in the Australian state or territory to where the letter was posted. 9 By s 494C(4) of the Act, so long as the Minister complied with the requirements for valid dispatch contained in s 494B(4), the applicants were treated as having received this notice of the delegate's decision whether or not they had in fact done so. 10 On 2 February 2015, the first respondent - not knowing of the dispatch of the 14 January 2015 notification letter - by email advised the Department of his (and his wife's) new residential and mailing address in McAleer Drive, Geraldton, Western Australia. 11 On 4 February 2015, a fact found by the primary judge and not disputed by the Minister, the first respondent received a telephone call from a departmental officer advising in effect that the notification letter sent to the previously notified address had been returned to the Department. The evidence of the first respondent concerning that phone call, upon which the primary judge relied, was set out in a letter that the first respondent gave to his solicitor, dated 10 March 2015 addressed "To whom it may concern", which was in the following terms: Notification for a Protection (class XA) visa was received at … Mcaleer Drive on Monday 16/02/15 because it was initially sent to our previous address … Quarry Street, Geraldton. On the 4/02/15 I received a phone call from a lady at the Department of Immigration that the letter sent to me to my previous address has been sent back to them in which I indicated that I had already changed my address. She said they do not have any record of my new address so I quickly do it again through the phone. After a week I then received a registered letter in my new address as on the date mentioned above. 12 On the basis of evidence before the primary judge and, by leave, in this Court, it appears that the Department then sent a document regarding the refusal of the protection visa application to the first respondent at his new address by registered post number 51003728074012 on or about 16 February 2015, and received by the first respondent on 16 February 2015. 13 There is some dispute as to whether the document sent on or about 16 February 2015 was merely a copy of the 14 January 2015 covering letter and enclosed delegate's refusal decision, or was a new letter, dated about the time it was received, namely 16 February 2015, enclosing the refusal decision and which constituted a second notification under the Act of the delegate's refusal decision. On the basis it was only a copy of the letter initially sent, dated 14 January 2015, the first and second respondents should have filed any review application in the RRT by 20 February 2015, according to the method for computing the review period set out in the letter. 14 As it transpires, the first and second respondents did not lodge any application for merits review with the RRT in that period, but did so on 4 March 2015. In effect, they treated the communication from the Department received on 16 February 2015 as a second, valid notification that created a second, valid merits review period. 15 When a submission to this effect was made to the RRT, when the question of the jurisdiction of the RRT was raised, the RRT found it did not have jurisdiction to consider the review application, because there was only one notification and that was by the letter dated 14 January 2015. Thus, by operation of the Act, the time for seeking merits review of the refusal decision had expired and the RRT had no power to extend that time. 16 The first and second respondents then sought a constitutional writ in the Federal Circuit Court, under s 476(1) of the Act, to quash the RRT's decision and to require the RRT to consider their review application. The primary judge granted the relief sought in terms of orders 2 and 3 set out above. See ASE15 v Minister for Immigration & Anor [2015] FCCA 2581. 17 First, the primary judge found that the Department re-sent the letter dated 14 January 2015, shortly after the telephone call of 4 February 2015, to the first and second respondents, and that it constituted a "second notification" by the Department of the decision of the delegate. 18 By reference to the decision of the Full Court of this Court in H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153; [2002] FCAFC 18, the primary judge considered it was open to the first and second respondents to seek review of the refusal in the RRT on the basis of either the first notification (the covering letter dated 14 January 2015) or the second notification. 19 On that basis, the primary judge considered that the review application lodged on 4 March 2015 was within the 28 day review application period that followed receipt of the second notification on 16 February 2015. 20 Secondly, the primary judge considered that, even if it were the position "that only one correct approach is available in respect of notification", the notification procedure did not exclude the principles of procedural fairness and, in circumstances where the first and second respondents had notified a change of address prior to the expiry of the review period created by the first notification dated 14 January 2015, and also engaged in a communication relating to the delegate's decision within that period, in which the Department had conveyed that it was forwarding the Delegate's decision again to them without identifying any covering letter or without explaining the consequences of the time that was running in respect of the earlier date of the letter, there would be a denial of procedural fairness of a kind that would give rise to a jurisdictional error in terms of the requirements under s 412(1) and the obligations under s 66(1) of the Act. 21 The Minister appeals from the judgment and orders 2, 3 and 4 made in the Court below, insofar as they affect the first and second respondents, on the following grounds: 1. The Court below erred in law by finding that 2 separate notifications under s 66(1) of the Migration Act 1958 were possible (see [13]-[18]). 2. The Court below erred in law by finding that a second notification pursuant to s 66(1) of the Migration Act 1958 to the first and second respondents (the first and second applicants in the proceedings blow) had occurred (see [11] and [16]). 3. The Court below erred in law by finding that the first and second respondents (the first and second applicants in the proceedings below) were denied procedural fairness such that the Refugee Review Tribunal's decision dated 2 April 2015 involved jurisdictional error (see [19]). 22 The Court will first deal with ground 2 and then, having regard to the disposition of that ground, will deal with ground 1. 23 Then it will deal with ground 3.